Citation Nr: 21007681 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-15 655A DATE: February 10, 2021 ORDER A rating in excess of 10 percent for a right knee disability, including limitation on extension, prior to April 26, 2017 is denied. A rating beyond 20 percent as of April 26, 2017, for a right knee disability based upon limitation on extension is denied. A separate compensable rating based on limitation of flexion, is denied. FINDING OF FACT 1. Prior to December 3, 2015, the Veteran’s right knee disability was characterized as arthritic with painful motion. 2. From December 3, 2015 until April 25, 2017, the Veteran had right knee arthritis with painful motion; limitation of flexion to 50 degrees, no limitation of extension, a combination of limitation of flexion and limitation of extension, favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees has not been shown. 3. As of April 26, 2017, the Veteran had right knee arthritis with painful motion; limitation of flexion to 100 degrees, limitation of extension to 15 degrees, a combination of limitation of flexion and limitation of extension, favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees has not been shown. CONCLUSIONS OF LAW 1. The criteria for an increased rating beyond 10 percent for a right knee disability, prior to April 26, 2017, based upon painful arthritic motion, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DC) 5003, 5256, 5260, 5261. 2. The criteria for an increased rating beyond 20 percent for a right knee disability, prior to April 26, 2017, based upon limitation on extension, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DCs 5003, 5256, 5260, 5261. 3. The criteria for a separate compensable rating for limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DCs 5003, 5256, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1959 to June 1962. The Veteran voluntarily withdrew his request for hearing before a Veterans Law Judge. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an increased rating for a right knee disability The Veteran asserts that he is entitled to increased ratings for his right knee disability which causes significant limitations with his daily activities. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), the a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on X-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Range of Motion The Board first considers the appropriate ratings based on limitation of motion. As an initial matter, for the period prior to December 3, 2015, the Veteran’s right knee disability was assigned a disability rating of 10 percent rating prior to December 3, 2015 under 38 C.F.R. § 4.59 because he has painful arthritis in his knee, which allows for a compensable rating for arthritis without limitation in range of motion to an otherwise compensable level. However, the Board notes that this is the highest rating allowable on this basis. Next, the Board has considered whether a separate rating is warranted based on either instability or range of motion. The Board notes that, if any rating is warranted, it is to be combines with, and not added to, his 10 percent rating under 38 C.F.R. § 4.59. The Veteran is assigned a noncompensable rating under DC 5260 from December 3, 2015. Specifically, in order to warrant an increased rating in the right knee based solely on limitation of motion or traumatic arthritis, the evidence must show: • Limitation of flexion to 45 degrees (10 percent under DC 5260); • Limitation of flexion to 30 degrees (20 percent under DC 5260); • Limitation of flexion to 15 degrees (30 percent under DC 5260); • Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256); or, • X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003). See 38 C.F.R. § 4.71a. After a review of the evidence, a compensable rating based on limitation of flexion is not warranted. Here, during an April 2013 VA examination, the Veteran reported some pain with flare ups that cause him to limp. The Veteran’s right knee range of motion was flexion to 115 degrees. There was no ankylosis or loss of function following repetitive testing. During an October 2014 VA examination, the Veteran indicated that he had right constant knee pain with weakness, and that he experienced daily flare ups. His right knee range of motion was 80 degrees flexion with pain on motion without any evidence of ankylosis. No loss of function was noted after repetitive testing. Finally, at an April 2017 VA examination, the Veteran reported that his knee was very sore and aggravated with activity. He continued to report flare ups and noted that his knee “gives” out. His flexion was limited to 100 degrees, noted in an addendum opinion in May 2017. Ankylosis was not documented. Moreover, while the Veteran has complained that there were additional symptoms after repetitive motion, there is insufficient evidence to indicate that such aggravations were so severe as to cause limitation of motion to a compensable level. Therefore, a compensable rating is not warranted based on limitation of flexion. Limitation on Extension The Veteran was assigned a 10 percent rating for limitation on extension until April 25, 2017, and a 20 percent rating thereafter. Based on the evidence of record, an increased rating is not warranted for either portion of the appeal. Specifically, in order to warrant an increased rating in the right knee based solely on limitation of motion or traumatic arthritis, the evidence must show: • Limitation of extension to 15 degrees (20 percent under DC 5261); • Limitation of extension to 20 degrees (30 percent under DC 5261); • Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256); or, • X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003). See 38 C.F.R. § 4.71a. Here, at an April 2013 VA examination, the Veteran reported some pain with flare ups that cause him to limp. The Veteran’s displayed no limitation on extension. There was no ankylosis or loss of function following repetitive testing. During an October 2014 VA examination, the Veteran indicated that he had right constant knee pain with weakness, and that he experienced daily flare ups. His right knee range of motion again displayed no limitation on extension without any evidence of ankylosis. No loss of function was noted after repetitive testing. Next, at an April 2017 VA examination, the Veteran reported that his knee was very sore and aggravated with activity. He continued to report flare ups and noted that his knee “gives” out. His extension was limited to 15 degrees, as noted in an addendum opinion in May 2017. Ankylosis was not documented. The Veteran does not have any treatment records available in the record that rest his range of motion regarding limitation of extension for which a disability rating could be assigned. Additionally, while the Veteran had a diagnosis of arthritis, there was no objective medical evidence that the Veteran had occasional incapacitating episodes. Therefore, a rating of 20 percent is for application as of April 26, 2017 based upon the findings at the April 2017 VA examination. A rating beyond that is not for application as there is no range of motion testing to support such. The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). In this case, while the Veteran complains of pain and weakness in his right knee during motion and activity, it does not appear that his pain results in additional functional loss, and thus these complaints are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). Instability Next, the Board has considered whether a separate rating for instability of the knee. However, an in-depth analysis is not required, as instability has not been shown during this appeal. Specifically, during a VA examination in April 2013 and October 2014, the Veteran reported pain, weakness, and flare-ups, but still had the ability to complete activities of daily living independently. While there were signs of pain and limited range of motion, the examiners did not find joint instability. During his VA examination in April 2017 joint stability was not tested. To the extent, the Veteran’s medical records report instability symptoms, his medical providers recommended a total knee replacement going back as far as 2013, which the Veteran has not complied with and he is still able to ambulate with the same cane as an assistive device. As a result, given the lack of instability symptoms, the Board concludes that a separate compensable rating based on instability for the right knee during this period is not warranted. Consideration has been given to the Veteran’s personal assertion that his right knee disability is worse than the rating he currently receives. Specifically, he reported that he has pain and instability which causes impairment with his activities of daily living. Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms such as pain and the sensation of instability, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his knee disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Additionally, as the Veteran is seeking increased ratings for his knee disabilities, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. Nevertheless, the Veteran does not assert, and the record does not suggest that his service-connected disabilities render him unemployable. In fact, the record reflects that he is still working as a real estate broker. As such, Rice is inapplicable in this case. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Billinger, David